What is a trade mark and how are they signified? You have probably seen superscript symbols above famous logos and may think they are interchangeable. However, as with many things in the law, it is not so simple, and using one incorrectly could see you face serious adverse consequences.

The two symbols are used as follows:

(a) TM symbol – used to indicate that the owner claims intellectual property rights over the designated mark, but that it isn’t formally registered under the Trade Marks Act 1995 (Cth) (Act).

(b) The ‘®’ symbol – used to indicate that the mark to which it pertains is registered under the Act, and that the mark and its owner have special statutory protections which they can rely on in the event of infringement.

There is no statutory protection afforded to marks signified by ‘TM’. Protections and rights afforded to a trade mark owner under the Act include:

(a) the exclusive right to use the trade mark;

(b) the exclusive right to allow others to use the trade mark; and

(c) the exclusive right to take legal action for infringement.

This does not mean that there is no utility to using ‘TM’. Intellectual property over trade marks are still protected at common law and under the Australian Consumer Law through the tort of passing off and the offence of misleading and deceptive conduct, respectively. However, they carry higher thresholds and burdens of proof to be made out, and therefore cost more to enforce.

Using ‘®’ when a trade mark is not officially registered under the Act carries a fine of 60 penalty units, which is currently $12,600 – so be sure not to do this without being prepared to be hit with a fine, or worse.

You should be particularly careful when using either of these symbols and make sure that it complies with the usage requirements under Australian trade mark law. The most effective way to protect your trade mark is to have it registered under the Act.